When a Mecklenburg County Superior Court judge is elected in 1998 to fill a vacancy left by a retiring judge, is the elected term eight years or only the unexpired remainder of the prior judge's term?
Plain-English summary
In 1998, Judge W. Robert Bell was elected to a Mecklenburg County Superior Court seat that had become vacant when Judge Chase Saunders retired. The Governor's commission to Judge Bell stated his term was eight years. After the election, Judge Bell's office got conflicting hints from various people about whether the election was really for eight years or only for the unexpired portion of Judge Saunders' original term. Judge Forest Ferrell, on Judge Bell's behalf, asked the Attorney General to settle it.
AG Mike Easley's office concluded the term was eight years. The reasoning turns on the structure of N.C. Gen. Stat. § 163-9(b), which has two paragraphs that work differently:
- First paragraph (default): When a vacancy is filled by an appointee, the appointee holds the seat until the next general-assembly election held more than 60 days after the vacancy. At that election, voters fill the unexpired term of the prior judge.
- Second paragraph (carve-out): That default does not apply to two categories. First, single-resident-judge districts. Second, multi-judge districts where no county is subject to Section 5 of the Voting Rights Act of 1965. In those carved-out districts, the election after a vacancy fills a new eight-year term, not the unexpired remainder.
District 26C is a multi-judge district located entirely in Mecklenburg County. Mecklenburg County is not on the federal list of jurisdictions covered by Section 5 of the Voting Rights Act (see 28 C.F.R. ch. 1, appendix to pt. 51). So District 26C falls into the second-paragraph carve-out. Judge Bell's 1998 election was therefore for a fresh eight-year term, not for the unexpired remainder of Judge Saunders' term.
The office noted in passing that Jim Drennan at the Institute of Government, Tom Andrews at the Administrative Office of the Courts, and Gary Bartlett at the State Board of Elections had all reached the same conclusion.
Currency note
This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The interplay between the federal Voting Rights Act and North Carolina's judicial-vacancy statute changed materially after the U.S. Supreme Court's 2013 decision in Shelby County v. Holder, 570 U.S. 529, which invalidated the coverage formula in Section 4(b) of the VRA and effectively suspended Section 5 preclearance. The text of N.C. Gen. Stat. § 163-9(b) at the time keyed off "section 5 of the Voting Rights Act of 1965" coverage, so the post-Shelby County status of those references is non-trivial and has been the subject of further legislation and re-codification of the election statutes (Chapter 163 was reorganized into Chapter 163A and back). Anyone calculating a current judicial term should consult the present version of the elections code, not this 2000 opinion, for the term-length rule.
Common questions readers actually have
What is the "Voting Rights Act Section 5" reference doing in a state judicial-term statute?
Section 5 of the VRA (as it stood before Shelby County) required certain "covered jurisdictions" with a history of voting discrimination to get federal preclearance before changing any voting-related practice, including how judges are elected. The North Carolina legislature carved Section 5 counties out of the new-eight-year-term rule because changing the term of judges elected from those counties would have triggered Section 5 review. The easier path was to leave the old "unexpired term" rule in place there and apply the new eight-year-term rule only where Section 5 did not bite. The 40 covered North Carolina counties were listed in the federal regulation cited (28 C.F.R. pt. 51, appendix).
Was Mecklenburg County ever covered by Section 5?
No. The Section 5 coverage formula was based on 1964/1968/1972 voter registration and turnout data. Forty North Carolina counties qualified at various points (mostly in the eastern part of the state). Mecklenburg, Wake, and most of the Piedmont were not on the list. Hence Judge Bell's 1998 election fell into the new eight-year-term track.
Did Judge Bell's commission language matter?
The Governor's commission stated the term was eight years, but the AG's office did not rely on the commission. A commission can't create a term that the statute doesn't authorize. The opinion looks at G.S. § 163-9(b) and concludes the statute itself produces an eight-year term. The commission language just happened to be correct.
Note on the title typo (24C vs 26C)
The opinion's posted title on ncdoj.gov reads "Superior Court District 24C," but the substantive text refers to "Superior Court District 26(C)." Both letters and accompanying citation to N.C. Gen. Stat. § 7A-41(b)(23) make clear the analysis concerns District 26C in Mecklenburg County. The 24C versus 26C inconsistency is a clerical error in the headers, not a substantive ambiguity.
Background and statutory framework
G.S. § 163-9(b) as it stood in 2000
The first paragraph stated, in summary, that an appointee to fill a superior court vacancy held the office until the next general-assembly election occurring more than 60 days after the vacancy, at which point the voters filled the unexpired term.
The second paragraph excepted from that rule two categories of districts. First, single-resident-judge districts. Second, multi-judge districts in which no county was subject to Section 5 of the federal Voting Rights Act of 1965. In those excepted districts, the post-vacancy election was for a fresh eight-year term.
Why two different rules?
The legislature had moved superior court elections in 1996 toward eight-year terms for new judgeships, but unexpired-term elections in Section 5 counties would have required federal preclearance because the change in term length is a voting-procedure change. Splitting the rule by Section 5 coverage status sidestepped the preclearance requirement.
District 26C's geography
District 26C is one of the three subdivisions of Mecklenburg's 26th Superior Court District. As the opinion noted, the district sits entirely within Mecklenburg County, and Mecklenburg was not Section 5 covered. So 26C fit cleanly into the second-paragraph carve-out.
The signing officials
The opinion was signed by Ann Reed, Senior Deputy Attorney General, and Susan K. Nichols, Special Deputy Attorney General. A copy went to Gary O. Bartlett, Executive Secretary-Director of the State Board of Elections.
Source
Original opinion text
Re: Advisory Letter; Length of Term of Office for Superior Court District 26C; N.C. Gen. Stat. § 163-9(b)
Dear Judge Ferrell:
You have requested an opinion on behalf of the Honorable W. Robert Bell with respect to the length of the term to which he was elected in 1998. He was elected to the position that became vacant upon the retirement of the Honorable Chase Saunders, one of the two judgeships assigned to Superior Court District 26(C) in N.C. Gen. Stat. § 7A-41(b)(23). His commission from the Governor stated his term was for eight years. He has received opinions on the length of the term from Jim Drennan with the Institute of Government, Tom Andrews with the Administrative Office of the Courts, and Gary Bartlett with the State Board of Elections. They have all reached the conclusion that the term is for eight years.
It is also our conclusion that the term to which Judge Bell was elected in 1998 was for eight years. Vacancies in superior court offices are controlled by N.C. Gen. Stat. § 163-9(b). It provides:
Except for judges specified in the next paragraph of this subsection, an appointee to the office of judge of superior court shall hold his place until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held to fill the unexpired term of the office.
Appointees for judges of the superior court from any district:
(1) With only one resident judge; or
(2) In which no county is subject to section 5 of the Voting Rights Act of 1965,
shall hold the office until the next election of members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held to fill an eight-year term.
Superior Court District 26(C) has two judges; however, the district is entirely located in Mecklenburg County. Mecklenburg County is not subject to section 5 of the Voting Rights Act of 1965, as amended. See 28 C.F.R. Ch. 1, (Appendix to Part 51). Thus, Judge Bell's election in 1998 was not for the remainder of his predecessor's term, but was for an eight-year term as specifically provided by the second paragraph of N.C. Gen. Stat. § 163-9(b). Please let us know if you have any further questions about this matter.
Signed by:
Ann Reed
Senior Deputy Attorney General
Susan K. Nichols
Special Deputy Attorney General
cc: Gary O. Bartlett
Executive Secretary-Director
State Board of Elections